1. Applicant's Name: a. Application Date: 29 March 2017 b. Date Received: 4 April 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of under other than honorable conditions discharge to general (under honorable conditions). The applicant seeks relief contending, in pertinent part and in effect, accepts full responsibility for the mistake and blames no one. Although the applicant was offered a general (under honorable conditions) discharge, the applicant chose to appear before an administrative separation board, hoping that the board would view the applicant as a very dedicated and exemplary Soldier, who made a bad personal mistake, and not damaging or victimizing anyone. hoped to continue serving the country in some capacity. The applicant feels the punishment and current discharge relative to an overall career and performance, although within regulation and the board's discretion, was extreme and inequitable. The applicant was not aware there was a right to appeal the decision, and therefore, was not afforded the full due process-the applicant absolutely would have appealed. The military counsel was inadequate and stifling to the applicant's defense by not contesting derogatory and inaccurate statements nor allowing the applicant to do so. The Brigade Commander at the separation hearing strongly stated, and almost commanded, to the officers on the board that the applicant failed the Army Values and must be separated, which may have weighed heavily on the board's decision not to retain the applicant. During an almost 17-year career, the applicant excelled in every rank, assignment, and role. (The applicant detailed the record of service and accomplishments, and awards, including deployment to both Operation Just Cause and Desert Shield/Storm.) The applicant completed the Army Substance Abuse Program and has been clean and sober since the day of arrest. The applicant lost everything and the dedicated service since the age of 17. Since discharge, the applicant continues to serve the military and Veterans. The applicant launched the Military Transition program for a fortune 100 company and worked closely with "ESGR" to provide employment for Soldiers and more. In a records review conducted at Arlington, VA on 11 January 2019, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. However, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, blocks 25, 26, and 28, contain erroneous entries. In view of the erroneous entries, the Board directed the following administrative corrections and re-issue of the applicant's DD Form 214, as approved by the separation authority: a. block 25, separation authority changed to AR 635-200, paragraph 14-12c, b. block 26, separation code changed to JKQ, and c. block 28, narrative reason for separation changed to Misconduct (Serious Offense). (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct / AR 635-200, Paragraph 14-12b / JKA / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 5 August 2005 c. Separation Facts: (1) Date of Notification of Intent to Separate: 21 December 2004 (2) Basis for Separation: The applicant was informed of the following reasons: He violated Article 112a, UCMJ, by wrongfully possessing cocaine and marijuana between 17 May 2004 and 20 May 2004, and by wrongfully using cocaine between 14 April 2004 and 14 May 2004. (3) Recommended Characterization: General (Under Honorable Conditions) (4) Legal Consultation Date: 3 January 2005 (5) Administrative Separation Board: 9 June 2005, Under Other Than Honorable Conditions discharge (6) Separation Decision Date / Characterization: 8 July 2005 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 29 March 2000 / Indefinite b. Age at Enlistment / Education / GT Score: 17 / HS Graduate / 117 c. Highest Grade Achieved / MOS / Total Service: E-7 / 11B1P, Infantryman and 79R1P, 00 Recruiter / 17 years, 2 months, 16 days d. Prior Service / Characterizations: RA (20 May 1988 to 19 September 1991) / HD RA (20 September 1991 to 20 November 1995) / HD RA (21 November 1995 to 29 May 1997) / HD RA (30 May 1997 to 28 March 2000) / HD e. Overseas Service / Combat Service: Korea, SWA / Specific location(s) and duration NIF f. Awards and Decorations: ARCOM-8; AAM-5; AGCM-5; NDSM-2; GWOTSM; AFEM; SWASM-2BSS; HSM; KDSM; NCOPDR-2; ASR; OSR; KLM; KLM(K); CIB; MUC; BSS g. Performance Ratings: Six NCOERs rendered during period of service under current review: October 1999 thru June 2000, Among the Best July 2000 thru June 2001, Among the Best July 2001 thru June 2002, Among the Best July 2002 thru April 2003, Fully Capable May 2003 thru August 2003, Among the Best September 2003 thru August 2004, RFC, Marginal h. Disciplinary Action(s) / Evidentiary Record: CID Report (and its associated documents), dated 18 August 2004, indicates the applicant was the subject of an investigation for wrongful possession of cocaine, wrongful use of cocaine, and wrongful possession of marijuana, for incidents occurring on 13 May 2004. An "Incident Information Report," reflected that on 13 May 2004, the applicant and his spouse were arrested at their government quarters after being followed by the local and military police for dealing with cocaine, and the applicant was subsequently released to his unit. Stipulation of Fact rendered for consideration by the administrative separation board indicates that on 13 May 2004, law enforcement officials conducting a legal search of the applicant's home found drug paraphernalia and cocaine, and that the applicant used cocaine between 14 April 2004 and 14 May 2004. FG Article 15, dated 22 November 2004, for disobeying a lawful general regulation on two separate occurrences, on 8 September 2003, by wrongfully advising Ms. X., the subject of recruiting efforts, to transfer custody of her minor child for the purpose of meeting enlistment eligibility and wrongfully processing her into the USAR with a dependent child under the age of 18, and wrongfully using cocaine and three separate occurrences of wrongfully possessing marijuana and cocaine, and traces of cocaine between 14 April 2004 and 14 May 2004. The punishment consisted of forfeiture of $1,610 pay per month for two months. General Officer Memorandum of Reprimand, dated in July 2004, Indicates the applicant was reprimanded for his conduct in the enlistment process of Ms. X., by recommending her to transfer custody of her child and conceal her dependent which resulted in a fraudulent enlistment. Negative counseling statements for being processed for an involuntary separation; being relieved of his duties; being command-referred to ADACP; being ordered to take a blood test; and being arrested at his government quarters. Mental Health Evaluation memorandum, dated 26 January 2005, psychiatrically cleared the applicant for any administrative actions deemed appropriate by his command. Report of Proceedings by Board of Officers with its summarized proceedings indicate that an administrative separation board, which convened on 9 June 2005, reported their findings and recommendations that the applicant committed a serious offense of wrongfully using possessing cocaine, and that he be separated with an other than honorable conditions characterization of service. The separation authority approved the findings and recommendations on 8 June 2005. i. Lost Time / Mode of Return: None / NA j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: Online application; applicant's cover sheet listing articles and accolades; article on GI Jobs Interview; article on Army Times interview; article on "8 Reasons to Hire Military Members"; article on "'Hire a Hero, Hire a Vet'"; article on "ESGR Partnership with Lowe's Stores"; and eight letters/statement of support and character references. 6. POST SERVICE ACCOMPLISHMENTS: The applicant's documentary evidence shows he is employed with Lowe's as the military transitioning recruiter for Lowe's. 7. REGULATORY CITATION(S): Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted. Paragraph 14-12c states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, Misconduct (Serious Offense). The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of 3. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his under other than honorable conditions discharge to general (under honorable conditions) or honorable. The applicant's available record of service, and the issues and documents submitted with his application were carefully reviewed. The available record confirms that the applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. The applicant, as a Soldier, had the duty to support and abide by the Army's drug policies. By the serious incidents of misconduct, the applicant knowingly risked a military career and marred the quality of his service that ultimately caused his discharge from the Army. The service record further reflects that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 25, separation authority as AR 635-200, paragraph 14- 12b, block 26 separation code as "JKA," and block 28, narrative reason for separation as "Misconduct." Therefore and as approved by the separation authority, the following administrative corrections are warranted: a. block 25, separation authority to AR 635-200, Chapter 14-12c; b. block 26, separation code to JKQ; and c. block 28, reason for separation to Misconduct (Serious Offense). The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant's service mitigated the misconduct or poor duty performance, such that he should have been retained on Active Duty. The applicant contends the discharge was unjust because it was extreme and inequitable; he was not afforded the full due process by not being advised of his right to appeal; his military counsel was inadequate and stifling to his defense; and his Brigade Commander strongly stated and almost commanded, to the officers on the separation board that he failed the Army Values and must be separated, which may have weighed heavily on the board's decision not to retain him. However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issues. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he was unjustly discharged. The applicant's statements alone do not overcome the government's presumption of regularity and no additional corroborating and supporting documentation or further sufficient evidence has been provided with the request for an upgrade of the discharge. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents of misconduct, and his post-service accomplishments, the Board can find that his complete period of service and his accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service. The Army Discharge Review Board is authorized to consider post-service factors in the re- characterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. The third party statements provided with the application speak highly of the applicant's character and performance. However, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant's chain of command. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 11 January 2019, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. However, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, blocks 25, 26, and 28, contain erroneous entries. In view of the erroneous entries, the Board directed the following administrative corrections and re-issue of the applicant's DD Form 214, as approved by the separation authority: a. block 25, separation authority changed to AR 635-200, paragraph 14-12c, b. block 26, separation code changed to JKQ, and c. block 28, narrative reason for separation changed to Misconduct (Serious Offense). 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: No Change c. Change Reason to: Misconduct (Serious Offense) d. Change Authority to: AR 635-200, paragraph 14-12c e. Change SPD / RE Code to: JKQ / No Change Authenticating Official: Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer SCM - Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial BH - Behavioral Health HD - Honorable Discharge NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20170005068 1